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The new Chief Minister of Kerala Pinarai Vijayan has willingly courted controversy in the first week of assuming office itself over Mullaperiyar and other issues.

The essence of his statement on Mullaperiyar was that Kerala will have to take into account the finding of the empowered committee appointed by the Supreme Court that the dam was safe and future negotiations would have to be over the report of the committee and its reliability. Secondly, he said that a new dam at Mullaperiyar, which Kerala had proposed as a means to ensure safety of people of five districts in the State, was not possible without cooperation from Tamil Nadu.

Faced with strong opposition to the change in the State’s stand over Mullaperiyar, Mr. Vijayan clarified that the government was still for new dam. What he had said was that it was not possible to build a dam without cooperation from the Centre and Tamil Nadu.

There was no compulsion for Mr. Vijayan to come up with an early policy statement on Mullaperiyar as no decision was pending on the issue that needed immediate attention. He also made a statement in favour of revival of the Athirappally hydroelectric project which is strongly opposed by environmental activists and leaders of the CPI which is a constituent of the ruling coalition, the Left Democratic Front. He could have delayed taking a stand on both the issues if he wanted.

However, he apparently had political and administrative reasons for making statements on Mullaperiyar and Athirappally even at the risk of losing some goodwill. On the face of it, the statements hook his bite noire in the party V. S. Achuthanandan who had adopted stands in favour of new dam and against Athirappally project in the past. There has been a truce between Mr. Achuthanandan and Mr. Vijayan before the elections, and Mr. Achuthanandan, as Leader of the Opposition, led the campaign of the Opposition Front. However, the CPI (M) chose Mr. Vijayan as the Chief Minister.

Mr. Vijayan’s statements come at a time when the party is considering an advisory position with Cabinet rank for Mr. Achuthanandan in the Government. Mr. Vijayan’s camp has already raised the criticism that this would give rise to duel power centres. If Mr. Achuthandnan loudly opposed the policy pronouncements by Mr. Vijayan, that would be proof to support the argument. Being a seasoned politician, Mr. Achuthanandan’s reaction was measured. Yet, there is no certainty that he would get the position he desired.

In a raising a controversy, Mr. Vijayan’s political costs are limited. His party does not have much support in any of the areas that will be directly impacted by failure of Mullaperiyar dam. The sufferer is the CPI which has won seats in areas that would be hit by a failure of the Mullaperiyar dam and impacted by the Athirappally project. CPI had done a sterling performance in this election winning 70 per cent of the seats it contested. The CPI (M) knows that it would have to concede more ground to CPI as CPI comes out of political stagnation in Kerala. So, any damage done to CPI is to its advantage.

There is also speculation that the CPI (M) would like to come closer to AIADMK considering CPI (M)’s diminishing importance at the national level. It is also notable that in Devikulam constituency in Kerala, where there is a Tamil population; AIADMK secured over 11600 votes which was more than twice the margin of victory of the CPI (M) candidate in the constituency.

Apart from political objectives, Mr. Vijayan’s statement is clearly aimed at laying the path for new initiatives. Kerala has nearly exhausted its legal options on Mullaperiyar at least for the time being. The way it conducted the cases before the Supreme Court left a lot to be desired. For example, the Supreme Court made an erroneous observation in its 2006 judgement that the waters would be contained in the Idukki dam downstream in case of failure of Mullaperiyar dam. However, Kerala failed to produce the Dam Break Analysis showing that towns and villages and a large population would be washed away, in subsequent litigation in the Court. The previous government then tried to hide reports of the Analysis, which it had commissioned, and other documents relating to the litigation from public by issuing an executive order against releasing documents on Mullaperiyar under Right to Information Act.

Now, Mr. Vijayan needs an opening to drive new policy and this could not be done without admitting the status quo following the Supreme Court orders and the impossibility of building a new dam in the near future. He has to open dialogue with Tamil Nadu. Acknowledging that there is a finding that the dam is safe is first step towards that.
Water for Tamil Nadu and safety for Kerala is slogan raised by the previous government. However, with Tamil Nadu seeking legal options and rejecting the proposal for a new dam, it had only campaign value. Mr. Vijayan has not specified what policy options he would pursue now. He probably has to reconstitute the Mullaperiyar Cell, which failed in its objective, and hold discussions with experts and lawyers before proceeding.

Even before Mr. Vijayan deprecated the proposal for new dam, there was a section of those agitating against the raising of water level in the old dam who argued that the dam should be decommissioned in a phased manner. The decommissioning should be over 50 years or so allowing Tamil Nadu the opportunity to shift its agriculture practices to modern techniques that need less water for irrigation.

Opinion is growing around the world against large dams and inter-basin diversion of river waters. The Mullaperiyar dam totally cut off flow through river. International covenants now recognise lower riparian rights and the need to allow flow needed maintain ecosystems and activities downstream.

Moreover, Kerala’s stand on impact on the Periyar Tiger Reserve is contradictory. On one side, it argued that the raising of the water level would harm the Reserve. On the other side, it proposed a major construction activity and impounding of water within the protected area.

It is expected that Mr. Vijayan would look into all this and come up with a new approach to the issue.

This is just an attempt by the politicians to buy time and hoodwink the public. The supervisory committee has representatives of Kerala and Tamil Nadu and Central Water Commission. The question of failure to issue timely warning before release of water through the spillways is a matter that the State government should be able to settle administratively, if necessary seeking intervention of the Centre. It will not be appropriate to agitate the Supreme Court now.

Moreover, it is not Kerala’s case that the Tamil Nadu did not warn it of impending release of water. There were reports that Theni Collector did so a few days ago. The complaint is that the Idukki Collector was not informed six hours before the release. Tamil Nadu apparently wanted to record that the water level touched 142 feet. When water level reached 141.9, it became imperative for Tamil Nadu to release water immediately as the inflow was very heavy. There needs to be an understanding on gradual release of water without waiting for the water level to touch 142 feet.

Kerala should also insist upon its lower riparian rights. The Expert Committee appointed by the Supreme Court had mooted construction of a tunnel to drain water into Periyar River downstream. This is also important from the point of view of safety. All modern dams have Bottom outlet tunnel which will facilitate emptying of the dam in case of an emergency—the Mullaperiyar dam does not have one, being one designed in the 19th century.

Every time Kerala has gone to Court over the Mullaperiyar issue, it has led to closure of its options. It has already lost its case that Tamil Nadu should raise the water level of Mullaperiyar beyond 136 feet only after exhausting storage at Vaigai Dam and that the spillway shutters should be opened gradually. In fact, when Kerala is arguing that the dam is not safe, it should be prepared for sudden release of water. This was what was lacking downstream of Mullaperiyar this Monday.

Kerala has failed to set up monitoring facilities it proposed on earlier occasions downstream of the Dam. Around 50 monitoring installations on the dam and reservoir, under control of Tamil Nadu, are reportedly not functioning. This is an issue that Kerala should be taking up legally or administratively. Even a modern dam without functioning monitoring equipment is unsafe.

Kerala had rushed to nullify a Supreme Court order of 2006 though legislation within weeks of the Court issuing the order. The legislature in its wisdom fixed the water level at 136 feet without building up supporting material. The Kerala Dam Safety Authority, which is a quasi judicial body, on the other had could have commissioned international studies on Mullaperiyar under the law and fixed the water level appropriately which would have been difficult to question before the Supreme Court.

When the Court quashed the law, Kerala suffered a multiple blow. Its arguments had led to the Supreme Court appointing a supervisory committee. As the supervisory committee of the Supreme Court is now managing the water level, it could put blame on Tamil Nadu only if it disregarded directives of the committee. Kerala will not even be able claim damages from Tamil Nadu for any losses caused by release of water or dam failure.

Kerala had ample time to prepare internationally acceptable documents on safety of Mullaperyar Dam from 2006 and even before. But it always rushed to do studies at the last minute. When safety of the people was paramount, one of the first studies it commissioned over a short span of time after 2006 was on submergence of forests and wildlife. (An analysis of errors in that study is available here. The author had to admit before Court that he had done a copycat job of work done by a State agency.)

Though there was an erroneous observation in the 2006 judgment (See Mullaperiyar- behind the veil.) that waters from Mullaperiyar would be contained in Idukki reservoir in case of failure of the former, Kerala failed to complete and produce the Dam Break Analysis before the Supreme Court in the case filed by Tamil Nadu challenging Kerala’s dam safety law.

Extract from the judgment of Supreme Court in ORIGINAL SUIT NO. 3 OF 2006 between Tamil Nadu and Kerala

Though the State Information Commission has ruled that this and other studies are public documents, the Principal Secretary of Water Resources Department has issued an illegal order against release of documents pertaining to the Mullaperiyar Dam as long as the issue is under litigation. Perhaps this is one reason why it wants another litigation.

As its strategies have failed so far, it is high time that it reconstituted the Mullaperiyar Special Cell with fresh talent and drew up fresh strategies.

Kerala’s move to approach the National Green Tribunal against raising of the water level in Mullaperiyar dam is likely to boomerang on Kerala.

Environmental arguments similar to those against raising of reservoir level can be raised against lowering the reservoir level also.

In fact, changes to the ecosystem created by the dam and its water will be more pronounced while lowering the water level.

Kerala’s argument is that the raising of water level in the reservoir submerged nearly four decades old vegetation just above 136 feet level in Periyar Tiger Reserve. Lush vegetation including some specialised species have grown in the local environment created by lowering of the water level.

Now, let us look at what will happen if water level is reduced to 132 feet as demanded by Kerala at one point of time, or eventual phased decommissioning of dam. Lowering of the water level will result in the water table going down in many parts of Periyar Tiger Reserve. This would cause a relative drought conditions in many parts of the Sanctuary compared to the present situation and will loss of biodiversity and density of vegetation. The specialised species will not survive in its original location.

Legal position:
Environmental impact argument is something rejected by the Supreme Court in its 2006 verdict itself. However, Kerala tried to raise it again when Tamil Nadu challenged Kerala’s dam safety legislation before Supreme Court. For doing this, it commissioned a scientist from West Bengal, who produced a study report within a matter of weeks. The report had several errors and it was essentially a reproduction of arguments made by KFRI over which Kerala had argued its case earlier. Though these mistakes had been pointed out, Kerala went ahead with producing the author as a witness before the Court. During cross-examination, he admitted he had copied from the KFRI report. This meant that Kerala had no new argument or point to be presented before the Court. Now, Kerala is trying to revive its lost cause by approaching NGT. It is not even considering the fact that Supreme Court is above NGT.

In any case it will be a win-win situation for TN. If the NGT rejects Kerala’s prayer, TN will have another handle. If it upholds Kerala’s argument, TN can use it in future against lowering of the water level or decommissioning of the dam.

Kerala’s argument goes against what the State itself is proposing to do. The new dam it is proposing to build at Mullaperiyar will submerge some areas of Periyar Tiger Reserve. It is also seeking Central clearance for raising the height of Peppera dam near Thiruvananthapuram by at least three metres submerging about 80 acres of forest. Though the area submerged by increased water level in Mullaperiyar dam is larger than these, the forests that would be submerged by the new Mullaperiyar dam or augmentation of Peppara dam are part of ecosystems that are hundreds of years old. Obviously, much more value is to be attached to the latter.

Moreover, Kerala has done the same thing that TN is doing. Water level at Idukki reservoir had remained low for about three decades. Kerala carried out augmentation scheme under Idukki project to improve inflow. None batted an eyelid, when vegetation that grew over the period was submerged by increasing water level. Besides, the area being submerged at Mullaperiyar was leased to TN much before the enactment of environmental laws.

If we really care for environment (instead just using environmental arguments with the wrong belief that it will win a case in which the key issue is safety), we should demand environmental flows downstream of Mullaperiyar dam, abandon the proposal for new dam and seek phased decommissioning of the old dam.

The Kerala State Information Commission has ordered Kerala Irrigation Department to release study reports and documents, submitted by it before the Supreme Court in the Mullaperiyar case filed by Tamil Nadu, under Right to Information Act. (See earlier post here)

The Department had refused to provide reports including the Dam Break Analysis on the ground that they were documents of “Strategic interests of the State” which were not required to be released under the RTI Act. The Commission did not uphold this contention and points raised by the Department in very detailed 70-page affidavit.

The complaint against the Department’s stand was made to the Commission as back as in March 2012. The hearing was taken up only by the middle of 2013 and was completed by September 2013. However, the Commission took nearly six months to issue the order.

The final hearing of the Mullaperiyar case is likely to begin in February next year before the Supreme Court. (The date is tentatively fixed as February 19, 2013). The report of the Empowered Committee of the Supreme Court on Mullaperiyar Dam has gone totally against Kerala. So, Kerala will have to disprove the Committee’s findings or advance fresh and acceptable arguments if it is to win the case. The Court has said that that it would not accept fresh evidence including the Dam Break Analysis.

Baby dam saddling the main Mullaperiyar dam. Repairs were carried out to this dam despite objection from Kerala but with tacit support by officials. Another round of repairs are underway now, reportedly with the permission of the courts. Photo: Roy Mathew

It is notable that the Committee has suggested repairs to the dam even while holding that the dam was hydrologically, structurally and seismically safe. The repairs have already begun.

The repairs proposed include treatment of upstream surface of dam, reaming of drainage holes, instrumentation and grouting of dam body. It has also suggested “periodical monitoring, analysis and leading away the seepage from toe of the dam towards downstream “.

The Committee found that the dam has not been adversely affected by leeching of lime dissolved in seepage water and rejected Kerala’s contentions in this regard. (That leaching has occurred is something that even Tamil Nadu had admitted. The dam had already been grouted for this reason and further grouting is proposed by the Committee itself. )
It said that the precautionary principle is not applicable as the dam has been found safe, and added that the Dam Break Flood Analysis and Emergency Action Plan do serve as precautionary measures. The findings of studies by Indian Institute of Technology, Roorkie and Delhi were rejected.

The Committee said that it did not accept the scare of a dam break flood wave because the Kerala government had not prepared dam break flood analysis. (The dam break analysis has since been done and it leaves little doubt that a dam break would be catastrophic.)

Why did the empowered committee accept the studies done by Annamalai University in Tamil Nadu in preference to the finding of the professors of Indian Institute of Technology (Roorkee and Delhi)? Was it bias? Or did not it have something to do with the quality of the studies.

It is well known that some of the studies were done quickly, just months before they were to be presented before they were to be submitted to the court. The draft of the first part had come with several mistakes that officials of the Mullaperiyar Special Cell (Kerala) had to go to Delhi to get them corrected. The second part of the seismic stability studies could not even be completed and submitted to the Supreme Court in time.

Why did the reputed experts of IIT wanted the study to be restricted to official use only. Were they avoiding public scrutiny? If one looks at the executive summary, it has more background than findings. Though Water Resources Minister P. J. Joseph had told a press conference in reply to questions that the Irrigation Design and Research Board would publish the PMF and flood routing studies on Mullaperiyar Dam done by IIT, Delhi, and Seismic Stability of Mullaperiyar Composite Dam done by IIT, Roorkee, on its Web site; it is yet to do so. The Department is also refusing to release copies of these and other studies under the Right to Information Act.

Additional Chief Secretary (Water Resources) of Kerala K. Jayakumar (now the Chief Secretary) has directed that the Dam Break Analysis (Mullaperiyar dam to Idukki Reservoir) should be denied to applicants seeking copies of it under the Right to Information Act.

The Additional Chief Secretary cites Clause 8 (b) of the Act for denying the public copies of the dam break analysis. However, there is no such Clause in the Act. There is, however, a clause 1(b) under Section 8 which states that information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court could be denied to applicants. But, the Office of the Chief Engineer (Inter-State Waters) has failed to provide copies of any court order forbidding publication of the Analysis.

Order against disclosure of Mullaperiyar dam break analysis

Moreover, the analysis in question has been placed before the Assembly, and so, it has become a public document in every sense of the term. Moreover, Water Resources Minister P. J. Joseph himself had held a press conference disclosing findings in the Analysis at Thodupuzha.

It is also notable that it is the practice world over to publicise results of dam break analysis and inundation studies so that the people are aware of the risks and safe areas. In some countries, it is mandatory to do such analysis and prepare evacuation plans at the time of construction of dams itself. These plans are always brought to the notice of the people and local authorities.

Member of the empowered committee of the Supreme Court on Mullaperiyar K. T. Thomas has stated in an interview to Malayala Manorama that the Mullaperiyar dam will stand for another 100 years. This should surprise many.

Mullaperiyar dam

According to experts, the normal life of a well-built concrete dam is about 60 years. None could predict the life span of a composite dam like Mullaperiyar with accuracy. However, there is enough evidence about the weakness of the old structure which actually stands supported by the concrete backup built by Tamil Nadu as part of strengthening measures. The Central Water Commission itself had acknowledged the weakness of the old structure in 1979, and if the backup would support the waters, its life span is only less than 60 years. (The strengthening measures were proposed for keeping the dam in service for 30 years at water levels higher than 136 feet.) Studies by the IIT, Roorkee and IIT Delhi showed that the composite structure could not stand a once in a 100-year flood or earthquake of the magnitude of 6.5 on the Richter scale. Mr. Thomas ignored these findings.

In his report, Mr. Thomas says that the capacity of the Idukki reservoir is 75 tmc and water level in the reservoir had never exceeded 54 tmc. Both these averments are wrong. The capacity of the Idukki reservoir is 70.5 tmc at full reservoir level. It can reach 74.4 tmc at maximum water level. However, water would have to be regulated once it reaches full reservoir level.

The water level in the reservoir had exceeded 70.5 tmc twice and the spillways had been opened. On several occasions, it had crossed 54 tmc. Then, why did Mr. Thomas quote these figures. Is it to substantiate the argument that waters from the Mullaperiyar (11 tmc) would be contained in Idukki reservoir, in case of a failure?

The argument that the former judge actually raises is that the Mullaperiyar reservoir level should be kept at 136 feet so that Idukki could get waters for power generation. This had never been the argument of Kerala and it had never got even five per cent of the water from Mullaperiyar. (It is also notable that the former judge has suggested that an intake tunnel should be constructed at 50 feet from the base of the dam. Even without such a tunnel Tamil Nadu is drawing almost all the waters from the dam. With such a tunnel, it will not have to spare any waters for Kerala.)

Kerala wanted the level to be kept at 136 feet for safety reasons. However, the argument that the dam is unsafe had been rejected by the Committee. So, it may be better for Kerala to change the demand for new dam as neither the Centre nor Tamil Nadu are going to agree to that given the findings of the Committee.

So, it should call for phased decommissioning of the dam on the basis of continuous evaluation of the condition of the dam by a competent body like the Dam Safety Commission. (A tunnel at a lower level as proposed by Mr. Thomas could aid this by allowing Tamil Nadu to draw water at current levels for years). Kerala should also press for its lower riparian rights and a good share of its own waters which had been denied to it through an agreement between a weak princely State and a colonial power.

The report of the empowered committee of the Supreme Court is the result of a strategic failure from the part of the Kerala government.

The Central Water Commission was actually the opposite party in the case for Kerala. Yet, it failed to prevent those associated with the Commission from undertaking safety related assessment of the Mullaperiyar dam. (Technical members of the Committee C.D. Thatte and D. K. Mehta were former Secretary to the Ministry of Water Resources and retired Chief Engineer, Central Water Commission respectively.)

Kerala nominated retired Supreme Court Judge K. T. Thomas to the committee. This was a strategic mistake as what Kerala needed was a man who could understand and judge technical matters and argue on technical issues. Kerala could have better argued legal points before the Court itself instead of having a legal luminary in the committee. It seems that Mr. Thomas did not push forward any legal issues. He failed to express his views strongly on technical matters, he being not a technical expert. The result is the finding by essentially by Mr. Thatte and Mehta that the dam is structurally and hydrologically safe.

In the process, they ignored studies by IIT, Roorkie and IIT Delhi which had found that the dam was not structurally and hydrologically safe. It was true that they had done the studies in a hurry and this affected its quality. However, there were irrefutable facts in their reports which the twosome has ignored.

Core sampling and its examination for strength was important in determining whether the dam was strong enough to withstand earthquakes and higher water levels. During drilling, proper samples could not be obtained except from the foundation, apparently because portions of the old dam were hollow. However, it seems that the committee submitted its report before the results of the study came in. Kerala should have insisted that the report should wait the finding of the study.

Now, Kerala would find it extremely difficult to argue technical points before the Court. The Court cannot be convinced easily that the dam is unsafe, as judges would attach value to the report of the empowered committee.

It may also be worth examining why Kerala made strategic mistakes. The government had always failure to act in time and in a coordinated manner. Its engineers did not see eye-to-eye on several matters. Its lawyers were not often briefed properly by its engineers. Politicians concentrated on playing to the gallery and there were often allegations against both the politicians and officials who were in charge of fighting the Mullaperiyar case over the past two decades. It is also worth noting that Tamil Nadu Chief Minister J. Jayalalithaa herself had alleged that Kerala politicians had land in areas irrigated by waters from Mullapeiryar.

Much of the discussion in the Dam Break Analysis (Mullaperiyar to Idukki reservoir) done by the Indian Institute of Technology, Roorkee, is about the height and speed of the water flow in case of failure of Mullaperiyar dam. As to the lives of people living downstream of the dam, it matters little whether the water would be flowing in at a height of 40 metres or 20 metres or with a velocity of 40 kilometres a hour. Even water flowing at, say, ten km an hour and a few metres high will claim lives. But width of the flow matters as that determines who all living near the river course would be affected.

The analysis shows that the top width of the flow would be less than 300 metres for the first 30 km of the path of flow along the river course. For the rest of the 15 km before reaching Idukki reservoir, the top width exceed half a km only at two points. However, the accompanying inundation maps show that water could spread out in low lying areas.

The study does not say anything about the chance of small hills or elevated portions on the sides of the river course being breached and water flowing into Pathanamthitta district.

Given below are the inundation maps. They are photographs of the original map prepared by the IIT. The image is not to scale because of distortions resulting from placement of the map and camera perspective. Locational information may be visible only in terms of longitudes and latitudes in the photo except for a few place names such as Vallakkadavu, Vandiperiyar and Upputhara. (The original map is a larger one plotted against a top sheet of 1:25000 scale.)

Map showing area that would be inundated by dam break flood from Mullaperiyar

Split Map 1:

Map showing area at Upputhara that would be inundated by dam break flood from Mullaperiyar

Split Map 2

Map showing area at Vandiperiyar that would be inundated by dam break flood from Mullaperiyar